The Rule of Law

by Maria Rivera

Maria Rivera is an associate justice for the First District Court of Appeal, Division Four, where she has served since January 2002. From January 1997 to January 2002, she was a judge of the Superior Court in Contra Costa County. She can be reached at Maria.Rivera@jud.ca.gov.

This article is excerpted and condensed from a speech given by Justice Rivera to the League’s City Attorneys Conference on May 3, 2007, in Monterey, California.

Eleanor Roosevelt once said, “A good public servant becomes so at a high cost of personal sacrifice. We need such men [and women]; when we find them we owe them our gratitude and, above all, our respect.”

Today, I will talk to you about Dan Curtin, the rule of law and municipal attorneys. The interrelatedness of these three subjects may not be readily apparent, but I hope by the end of my remarks you will see the connection.

Dan knew how to laugh at himself and how to use humor to maintain his perspective. Not long ago, he told one of his partners this story about a visit to Albania.

Dan was meeting with the mayor and other dignitaries of a village that was experiencing rapid growth. He was there to make a presentation about urban land use planning. Dan, of course, explained that all land use regulation and planning begins with the constitution, the general plan, and then waxed eloquent about all the fine things that flow from developing a general plan and the related municipal benefits. At the end of the presentation the mayor said: “Yes, yes, a general plan. This sounds good. Very good. But Mr. Curtin, do you think you could get us a truck?”

Now, anyone who has heard Dan speak has heard about the general plan being the “constitution that governs the direction of future land use.” Hearing it, one is struck by the almost missionary zeal with which Dan spread the general plan gospel. Dan understood that municipal law -- typified by the hierarchical structure of land use planning laws and regulations -- is a powerful symbol of the principle of government by the rule of law.

Let us briefly explore what is meant by the rule of law. It was Aristotle who first distinguished the rule of law from the rule of men. “He who bids the law rule,” Aristotle said, “may be deemed to bid God and reason alone rule. But he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men.” So, for Aristotle, law in its highest form is “reason unaffected by desire.”

Centuries later, Montesquieu famously expanded upon the notion of the rule of law and focused upon its value as providing to the citizenry a sense of security -- a freedom from the fear that those holding power over military force could at any time turn it upon the people. The rule of law as expressed by Montesquieu, Judith Shklar (1928–92, a political theorist and professor of government at Harvard University) explained, “is the one way ruling classes had of imposing controls upon each other.” And it was in Montesquieu’s discourses that one could see the beginnings of the idea that checks and balances would serve to protect the rule of law.

A recent essay by Bo Li (in Perspectives, Vol. 1, No. 5, published by Overseas Young Chinese Forum, online at http://www.oycf.org/Perspectives2/5_043000/what_is_rule_of_law.htm) describes the rule of law as an “autonomous legal order” that has three basic components: First, it limits the power of government -- both elected officials and majoritarian power. Second, it demands that all be treated equally before the law, from the lowliest citizen to those at the highest echelons of power. Third, it requires both procedural and formal justice; that is to say, there must be fair, consistent rules that are pre-announced, and transparently and consistently applied.

At the core of this “autonomous legal order” is the idea that the laws themselves must be founded upon basic moral principles that protect fundamental human rights. In this way the rule of law can be distinguished from the rule by law. Under a rule by law, there is no such moral grounding. Under rule by law, any laws that are legally enacted are to be enforced. So, for example, this reliance on the pure “formal rationality” of the law served to justify the judicial enforcement of the anti-Semitic laws in Nazi Germany.

Recently, the phrase “rule of law” has pervaded the political lexicon and is being cited willy-nilly to serve all sorts of political ends. As a result, some would argue, its meaning may have lost all coherence. Shklar wrote, “It would not be difficult to show that the phrase ‘the rule of law’ has become meaningless thanks to ideological abuse and general overuse. It may well have become just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians. No intellectual effort need therefore be wasted on this bit of ruling-class chatter.”

Shklar seems to be suggesting that the term “rule of law” has become what is called in political theory an “essentially contested concept” -- a concept about which there is general agreement on the abstract idea, but endless arguments as to the true manifestations or realizations of the idea. In an interesting exercise meant to test whether Shklar was right, Jeremy Waldron, professor of law at New York University, studied the rhetoric that was tossed around during the Florida election debacle in 2000.

Waldron wrote: “One of the remarkable features of the turmoil surrounding the counting and recounting of votes in Florida in the 2000 presidential election was the frequency with which ‘the rule of law’ was invoked. Let me count the ways.” He goes on to catalogue how both sides, at each stage of the process, invoked the principle either in support of its own position or to attack what the opponents were doing. “People appealed to the rule of law [both] to defend and to criticize legally authorized exercises of discretion by political partisans; to defend and to criticize the use of rules rather than standards as a basis for recounting votes; [and even] to defend and to criticize innovative judicial decisions.”

Thus, while the party who lost, Al Gore, took the line that the rule of law precluded any criticism of the justices’ decision in Bush v. Gore, the justices themselves had no hesitation in invoking the rule of law in their criticism of the majority opinion. In the now famous words of Justice Stevens: “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”

So, the meanings and expressions of the rule of law can perhaps be endlessly debated. But as one commentator has said, “The rule of law does not inhabit some rationalistic universe nor can it withstand rigorous intellectual scrutiny; it has to be experienced and lived. ... The rule of law is a maxim of political action and not a precept of ethical reflection.” In fact, Waldron ends up concluding that the rule of law is an essentially contested concept, but unlike Shklar, also concludes that this is itself a manifestation of the rule of law. The rule of law, Waldron writes, “is actually served by people asking and arguing about what counts as the rule of law.... A society ruled by laws, not men, is bound to be a society in which there is constant debate about what the rule of law means.” In short, both because of and in spite of all the rhetorical flourishes, the rule of law principle is alive and well.

Moreover, of late it has gained much traction in the international sphere. As explained in a speech by Kristen Boon, associate professor at Seton Hall Law School, the “rule of law has become a particularly prominent theme since 9/11, and is now being addressed as a topic in its own right by the Security Council. It is routinely included in the mandate of United Nations peacekeeping operations, and billions of dollars in development assistance are tied annually to assessments of whether nations enforce the rule of law at home.” And why, you may ask, has this concept gained such moxie in international affairs? Boon responds, “The short answer is that the rule of law is considered to be fundamental to three things: the exercise of civil liberties; a market economy; and global peace and security.”

Which brings us back to Dan Curtin, traveling attorney with a brief.

Dan ventured around the world to Kyrgyzstan, Romania, Azerbaijan, the Ukraine, Armenia, Moldavia, Belarus, Bulgaria and points east as part of the American Bar Association’s Rule of Law Initiative, to instruct burgeoning democracies on the subjects of local governance and land use regulation. Dan understood the importance of building confidence in government from the ground up. In essence, the general plan became a metaphor for the notion that a constitution -- and not arbitrary decisions by those in power -- should govern decision-making.

This ground-up approach to nurturing democracy is imbedded in our political identity. As de Tocqueville observed more than 150 years ago, “It is incontestably true that the love and habits of republican government in the United States were engendered in the townships and in the provincial assemblies. [I]t is this same republican spirit, it is these manners and customs of a free people, which are engendered and nurtured in the different states, to be afterward applied to the country at large.” And the League’s first “Core Belief” articulates this principle: “Local self governance is the cornerstone of democracy.”

Which brings me to you. Not everyone has the time or energy to travel around the world and promote the rule of law in emerging republics. But the rule of law is at risk at home as well, and, as the old saying goes, “All politics is local.” That makes you the first line of defense for the rule of law. It is your sacred trust, every day. Every action you take as a government attorney should be a transparent example that the rule of law applies to governments and not just citizens, to elected officials as well as to the folks who elect them.

The League’s excellent publication Practicing Ethics: A Handbook for Municipal Lawyers makes clear where your loyalties must lie. In several places it reminds you that “the city is the client.” And while it is true that the city generally acts through its “highest officer, employee, body or constituent overseeing the particular engagement,” if a conflict develops among those officials or between what those officials want and a higher law, the attorney’s loyalty is to the city. And what is the city? In ancient Rome, the very word for city -- civitas -- meant “a unity of citizens.” Your loyalty is to the citizens, and therefore to the rule of law that protects them. It falls to the government attorney to be the voice that keeps faith with the people.

Conflicts between the rule of law and your elected officials rarely develop. When they do, as you well know, it can be, shall we say, a career-defining event. We judges, though not as vulnerable as appointed city attorneys, occasionally feel the same heat. Indeed, this is why Aristotle’s ideal emphasized that the “single most important condition for the rule of law is the character one must impute to those who make legal judgments.” And this is why it seems the greatest betrayal is a public servant who has sworn to uphold the law, but then chooses loyalty to the appointing authority over loyalty to the rule of law.

I know this is not news to you, and you will forgive me, I trust, for preaching to the choir. But in Dan’s memory, I could not resist this opportunity for a short refresher on what was Dan’s -- and must be your -- guiding light. So in closing, let me paraphrase Justice Stevens: The city, he would say -- the unity of citizens -- must have confidence in the city attorney as the impartial guardian of the rule of law.

In large decisions or small, that -- and nothing less -- is your daily charge, and in the tradition of Dan Curtin, I know you will all continue to fulfill that charge with honor.

About Dan Curtin

Dan Curtin (1933–2006) was the official “dean” of planning and land use in California. In fact, the University of California, Irvine, actually bestowed this honorary title on him in 1985. It would be hard to find a city attorney, planner or land use professional in California who has not consulted one of his publications or attended one of his seminars.

Curtin made numerous contributions to the field of land use and planning law. He was among the first to specialize and define the practice area. Class materials that he prepared in the 1970s became the basis for Curtin’s California Land Use and Planning Guide, now in its 26th edition. In addition, he mentored two generations of land use professionals.

More than anyone, Curtin shaped the general plan as the center point for land use decision-making. In Lesher Communications v. City of Walnut Creek, the California Supreme Court adopted his phrase that described the general plan as the “constitution for all future development.” Several years later, in DeVita v. County of Napa, the court accepted the notion of “vertical consistency” that he had been teaching for years: All key development decisions must be consistent with the general plan.

Curtin started his career in the California Legislature in 1959, where he served as counsel for the Assembly Committee on Local Government. He became a city attorney in 1961, serving as Richmond’s deputy city attorney from 1961–65 and as city attorney for Walnut Creek from 1965–82. Curtin was the League’s City Attorney Department president in 1973 and served on the League board of directors. He also helped found and served on the League’s Legal Advocacy Committee. In 1986, the League officially recognized his years of service and contributions to planning in California cities with an award at its annual conference.